A South Carolina Employment Law Firm

Social Media & Your Job

Have you checked your Facebook, Twitter, Instagram, LinkedIn, YouTube, Pinterest, Reddit, and email accounts today? A lot of employees have; more and more are finding themselves in hot water because of it.

Inappropriate use of social media can prevent you from getting hired or could get you terminated. If you’re thinking, “This wouldn’t happen to me…” take a look at this infographic published by the social media management site, Reppler. Your friends aren’t the only ones looking at your Tweets and Facebook photos! Who can legally view your online activity? What are your rights as an employee?

28% of employers have fired employees for email misuse; 30% have terminated employees for internet misuse

Violation of company policy, inappropriate content/language use, and excessive personal use are some of the top reasons for internet-based terminations

Most private employees have extremely limited privacy rights in the workplace. All employer-provided communication devices and systems (computers, laptops, work email, cell phones, etc.) are potentially subject to monitoring. If you have access to the internet at work, it is highly likely that your employer is monitoring your online usage. If you signed a consent form when you were hired, you may have also given your employer authorization to monitor personal internet-based accounts you access on the clock. If you don’t want your employer to have free access to your Facebook, Twitter, YouTube, Instagram, and personal email accounts, do not log on at work!

Company Email Accounts

Email conversations are not the same as telephone conversations. Phone conversations are partially protected by privacy laws; email conversations are sent across a public network where you have no right to privacy.

A Pennsylvania District Court set forth the majority rule in 1996 (Smyth v. Pillsbury Company) that employees have no privacy rights when it comes to company emails. The public policy interest a company has in refraining from making inappropriate, unprofessional, and/or offensive comments “outweigh[s] any privacy interest the employee may have in those comments.”

What about the content of my social media pages, regardless of when/where I post?

Job-related content

In 2011, the National Labor Relations Board (the government agency that enforces labor law and investigates labor-related complaints) released these guidelinesfor protected social media content. To summarize, the National Labor Relations Act (29 U.S.C. §§ 151-69) gives employees (not supervisors) the right to . . .

Discuss “the terms and conditions of their employment with others”

“Engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . .”

“Concerted activity” is defined as an activity that has “the object of initiating or inducing or preparing for group action…” and includes bringing “truly group complaints” to the company’s attention.

You may have heard about the case NLRB v. American Medical Response (2011) involving an ambulance company employee (Dawnmarie Souza) who complained about her boss on Facebook. Her status sparked an internet conversation amongst her coworkers; eventually, her supervisor found out and Souza was fired. The NLRB took her case, arguing that the employer’s internet policy was too restrictive and did not allow for protected “concerted activity.” The ambulance company eventually settled, agreeing to revise its “overly-broad social media policy” to allow workers to collectively and publically discuss wages, working hours, and working conditions.

In another case, an employee posted concerns about her employer’s company on a public Facebook page. She discussed wages, company policies, and made other allegations which would have normally qualified her for NLRA protection had she discussed the comment with other employees before or after the posting was made. Because the employee posted without consulting anyone else, her termination was upheld.

Although speaking on behalf of coworkers in order to improve your working conditions (e.g. posting about illegal company practices) is a protected activity, employees should still use extreme caution when doing so. The best way to handle a problem is to report the issue internally where you work; after that, you may want to seek the help of an appropriate government agency (EEOC, SEC, EPA, NLRB, etc.) and contact a South Carolina employment law attorney.

Don’t I have a First Amendment right to free speech in the workplace?

Nope – not if you’re employed by a private company. Government employees have some limited protections under the First Amendment (e.g. the right to speak on matters of public concern), but not many.

The Supreme Court held in City of San Diego v. Roe (2004) that a police officer’s inappropriate video was not protected speech under the First Amendment. The general public has rights to free speech that public (and private) employees do not.

The only speech that’s protected across the board is “concerted activity” (see discussion above). Here are some tips about posting online:

Be especially mindful if you’re considering posting any religious, political, or otherwise contentious opinions online. You could get yourself into a sticky situation if you offend someone in the workplace.

Hashtags (#), a social media tool previously unique to Twitter and Instagram, are now up and running on Facebook. Tagging your posts, e.g., #workstinks or #ihatemyboss, only makes it easier for you to get in trouble. See this article about people getting fired for their Instagram posts and related hashtags.

Other Content

There are dozens of cases where employees have been fired for non work-related internet content because it was inappropriate, offensive, and/or threatened their company’s reputation. This high school teacher and this professional cheerleader were both fired after Facebook photos surfaced showing them partying. This teacher was fired for listing inappropriate and racially charged comments under her “About Me” section. For more examples, check out “The Facebook Fired”, a blog with an extensive archive of social media-related terminations dating back to 2010.

Finally…

Be cautious of your social media activity and email usage at all times, even when you’re not at work! Social media content and internet history are both discoverable (anything you post could potentially be brought in as evidence against you during a trial; see this Pennsylvania case for a discussion of relevant discoverability issues). According to the American Management Association, 24% of employers have had company emails subpoenaed by regulatory agencies and courts; another 15% have been involved in litigation triggered by employee emails. You never know what kind of legal issue you could be stuck in, so email, post, and “like” carefully!

Employers:

You may want to consider utilizing employee consent forms that authorize you as the employer to monitor workplace communications. Lots of companies are starting to implement social media policies, but these could be held invalid if they are too broad. Workplace internet policy is a new and evolving area of the law, so contact an attorney for assistance in drafting these types of documents.

If you discover inappropriate social media content posted by an employee, make sure that content has a link to job performance and/or company reputation before penalizing the worker. If the content in question involved two or more employees (i.e. not a solo act), it may fall under the NLRA’s category of protected speech (which can include “egregious name-calling”). Check with an attorney before taking disciplinary action.

Employers should be careful when reviewing social media content for potential hires; looking at an applicant’s Facebook page exposes you to a lot of liability if you discover an applicant is part of a federally protected class (race, gender, ethnicity, national origin, etc.). Before searching for an applicant online, it would be ideal to obtain consent from him/her.